Appeals court backs LV in fight with dance club

Thursday, Sept. 11, 2003 | 9:12 a.m.

CARSON CITY -- A federal appeals court ruled Wednesday that the constitutional rights of a Las Vegas erotic dancing club owner were not violated when the club's license was suspended for allowing liquor on the premises without a permit.

The U.S. Ninth Circuit Court of Appeals, in a 2-1 decision, said a precedent decision by the U.S. Supreme Court in another case "makes it clear that Talk of the Town may not use the First Amendment as a cloak for obviously unlawful conduct."

City inspectors in Las Vegas conducted undercover investigations at Talk of the Town in January and February 1998. The club was licensed to present erotic dancing.

But the inspectors found there was drinking in the business and alcohol was brought in from off-site.

City ordinances said a business is prohibited from selling or allowing the consumption of alcohol unless it has a liquor license. The city suspendd the club's business license for three weeks.

A court fight followed. The city moved to close the business, which was shut down for three days in 2001. But the federal court in Las Vegas allowed the club to reopen.

U.S. District Judge Lloyd George later ruled a part of the city ordinance invalid because it did not provide that before enforcement of suspension of the license there must be an opportunity for a prompt judicial review or there must be a procedure to stay the suspension order pending a court review.

Judge Diarmuid F. O'Scannlain, who wrote the majority opinion for the appeals court, said in a footnote that "There is no dispute that erotic dance establishments like (Talk of the Town) are venues for constitutionally protected expression."

O'Scannlain said the city ordinance requiring a liquor permit for on premises liquor consumption eapplies to all businesses and "in no way can be said to regulate conduct containing an element of protected expression," referring to the erotic dancing at Talk of the Town.

The majority opinion said that enforcement of an ordinance is not barred if a business breaks the law in one area, even though it conducts "protected expressive conduct" in another part of the business.

The court said the Las Vegas City Council allowed the club "greater procedure protection" even though it was not required to do so. It permitted a 14-day lag before it enforced its three-week suspension.

The court rejected the club's argument that it should be free to carry on its business at another location during the three-week suspension. It said: "By imposing a relatively brief suspension to punish its unlawful nonexpressive activity, the city properly sought to protect the environment of the community by directing the sanction at premises knowingly used for lawless activities."

It said there was no evidence that the suspension was a pretext for suppression of "protected expression."

Judge William Canby Jr. dissented, saying Judge George "properly concluded that the Las Vegas ordinance authorizing suspension of erotic dancing licenses failed to meet the First Amendment requirement of speedy judicial review or a stay of enforcement until completion of judicial review."

Canby wrote that during the suspension, Talk of the Town was able to use the business for other activities but can't present erotic dances. "Because the suspension is directed at expression, the First Amendment is necessarily implicated," he wrote.